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New Juror Instructions Aim To Insulate Trials From Tweets And Other Social Media

Date: 9/14/12

On September 12, 2012, Apple CEO Tim Cook unveiled the new iPhone 5. With sales of the Apple phone’s most recent iteration anticipated to be robust enough to provide a bump to GDP, the announcement generated buzz amongst tech bloggers and market watchers alike. But, for the Judicial Conference Committee, the idea of the newest smart phone in the hands of jurors is probably a cause for concern rather than celebration.

The new Proposed Model Jury Instructions on the Use of Electronic Technology to Conduct Research or Communicate about a Case (pdf) seek to prevent jurors from being swayed by outside influences that “would unfairly and adversely impact the judicial process.” The effectiveness of the instructions will depend on jurors, judges, and you. The new instructions attempt to curb improper juror use of smart phones and social media by reminding jurors early and often of their duty to consider only the evidence presented in the courtroom. The Judicial Conference Committee recommends that the Model Jury Instructions should be provided to jurors “before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.” That may not be enough. Some judges have taken the additional steps of giving a plain language explanation of the reasons behind the ban on social media and confiscating electronic devices in the courtroom. Jurors are also encouraged to self-police the jury box and report misconduct by fellow jurors.

The reality is that as many jurors will have smart phones in their pockets as have watches on their wrists. The courts—occasionally maligned as a bastion for Luddites—have taken notice. The Federal Judicial Center conducted a survey of federal district court judges to assess the frequency with which jurors use social media to communicate during trial and deliberations, and to identify effective strategies for curbing this behavior. Most judges recognize that it is no longer sufficient to prevent prospective jurors from accessing the local newspaper’s coverage of a case. Judges are cracking down: in the same way that a juror could not bring their pocket dictionary into the jury deliberations, using a smart phone to define a key term for the benefit of the other jurors could be considered juror misconduct. By the reasoning of one Florida appellate court, asking Siri the definition of “prudent” might be grounds for a new trial.

What is more, social media allows jurors to produce content almost as easily as they can access it. Thanks to Twitter, Facebook, blogs, websites and chat rooms, a single juror’s off-the-cuff mental impressions can be broadcast and start trending in a matter of minutes. Those who find jury service dull or uninspiring seem particularly likely to improperly access social media. Even if jurors use social media only to break the tedium of a long trial, judges and commentators are rightly vexed by the possibilities. Whether or not a juror has malicious intent animating their improper communications, an accused’s right to an impartial jury in a criminal trial or a litigant’s right to the fair disposition of a civil dispute easily could be compromised. The court’s contempt power is significant and the new instructions provide broad grounds for civil or criminal sanctions against disobedient jurors, but the deterrent effect of this combination on potential misconduct is difficult to gauge.

In one case, the court not only declared a mistrial, but also convicted a juror of indirect, willful criminal contempt of court after the juror posted on Facebook about the trial he was participating in. The contempt hearing focused on the court’s jury instruction that jurors “must not use phones, computers or other electronic devices to communicate.” Courts have broad discretion in response to the discovery of social media use by a juror. In one court, a former juror drew a three-day jail sentence from a justifiably angry judge for this ill-advised Facebook post: “Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha.”

A jail sentence is extreme and judges employ a range of remedies. Some judges have reported dealing with the issue by removing the juror. Other judges dealt with similar scenarios by cautioning the offending juror, but allowing him or her to remain on the jury. In egregious examples of misconduct, judges may declare a mistrial. But if the court is satisfied that the comments were harmless and there was no prejudice to the defendant, a new trial is not a necessity.

When you have a case in court, consider monitoring the jurors’ publicly available social media outlets for misconduct. But be wary; your lawyers could run afoul of ethical rules if they “friend” a juror or party opponent on Facebook or follow them on Twitter. As a litigant, you may not be able to prevent improper electronic device use by jurors, but you can be alert to the very real possibility of juror misconduct.